ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADRIAN HATAMI
Applicant/Defendant
K. Stratos, for the Crown
L. Cohen, for the Applicant/Defendant
HEARD: September 11, 12, 13, 14, 15, 18, 19, 20, 21, 2017
mcarthur j.
Overview
1Mr. Adrian Hatami is facing a number of gun charges arising from an incident on May 29, 2015, when it is alleged that he had a loaded 38 caliber, snub nose RG40 revolver in his car.
2On that date, Mr. Hatami was driving when someone began to shoot at his car. Mr. Hatami and one of his passengers, Mr. Aydid Adan, were both shot. Mr. Hatami flagged down a police cruiser, got out of his car and collapsed on the ground. Officer Shayne Worsdale began to assist him. As he did, the officer learned that there was a gun on the road in front of Mr. Hatami’s car. He asked Mr. Hatami whose gun it was. Mr. Hatami asked if he would get in trouble. When the officer responded that he was “not worried about that now”, Mr. Hatami admitted ownership of the gun and said he needed it for protection. The officer turned on his microphone (so that he could capture the evidence) and once more asked Mr. Hatami whose gun it was. Again, Mr. Hatami admitted that the gun was his. The officer began to caution Mr. Hatami, but got distracted by Mr. Adan before finishing.
3In the ambulance, as Mr. Hatami was taken to the hospital, Officer Andrea Liska asked him questions about the gun. He said he had told the first officer that it was his gun, it was a revolver and he carried it for his protection. Once at the hospital, after Mr. Hatami finished receiving emergency medical treatment, Officer Liska arrested him for possessing the gun, cautioned him and read him his rights to counsel. Mr. Hatami said he wanted to speak to duty counsel. The officer asked the hospital staff for a telephone in order to facilitate the right to counsel, but was told one was not available at that time.
4Before Mr. Hatami had an opportunity to speak to counsel, Officer Stephen Hewitt and Officer Chris Moorcroft interviewed him and he again admitted that the gun was his. Approximately six hours after first asserting his right to counsel, Mr. Hatami was given an opportunity to speak with duty counsel. When he did, however, it was not a private consultation. Mr. Hatami was in a room with other patients. A few hours after that, the police again interviewed Mr. Hatami. As before, he admitted to owning the gun. The police cut the interview short, as Mr. Hatami seemed to be tired, in pain and in no condition to answer questions.
5On May 31, Officers Hewitt and Moorcroft interviewed Mr. Hatami a final time. As before, Mr. Hatami admitted that the gun was his.
6The Crown now seeks to have the utterances Mr. Hatami made at the side of the road to Officer Worsdale admitted. The Crown also seeks to have the statement from May 31 admitted. The Crown argues that both were voluntary statements. The defence counters that the prosecution has failed to establish that the statements were voluntary. The defence also asserts that Mr. Hatami’s rights to counsel pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms were violated a number of times in the investigation. He argues that the statements should be excluded pursuant to s. 24(2) of the Charter. The Crown concedes some, but not all, of the alleged breaches. He argues, however, that the evidence should be admitted.
7Both sides agree that the case rises or falls on the admission of the statements. If even one is admitted, then Mr. Hatami must be found guilty. If they are excluded, he must be acquitted.
8For the reasons that follow, I find that Mr. Hatami’s s. 10(b) rights were violated when Officer Worsdale asked him to repeat his admission to ownership of the gun without advising him of his rights to counsel. I have also determined that the utterances at the roadside are inadmissible as they have not been proven to be voluntary beyond a reasonable doubt. Further, the utterances in the ambulance were involuntary and elicited in breach of his s. 10(b) rights. At the hospital, Mr. Hatami’s s. 10(b) rights were violated in a number of ways. There was an unreasonable delay in facilitating the right to counsel, the officers questioned him after he asserted his right to counsel, but before he had an opportunity to exercise that right, and he was never provided an opportunity to consult with counsel in private. In light of the nature of the breaches, I have determined that the admission of the May 31 statement would bring the administration of justice into disrepute. As a result, the statement is excluded pursuant to s. 24(2).
9I do not intend to detail the evidence at the outset, but will refer to it as necessary in my analysis.
Analysis
The Utterances Made by Mr. Hatami at the Roadside
10Two issues arise with respect to the utterances made by Mr. Hatami at the roadside. First, did Officer Worsdale breach Mr. Hatami’s rights to counsel pursuant to s. 10(b) of the Charter? Second, were the utterances voluntary? I will address each issue in turn.
Issue One: Did Officer Worsdale breach Mr. Hatami’s s. 10(b) rights to counsel?
11Section 10(b) of the Charter provides that upon arrest or detention, everyone has the right “to retain and instruct counsel without delay and to be informed of that right”.
12Mr. Hatami made two utterances at the side of the road, each in response to a question by the officer. The first was before Officer Worsdale turned on his microphone. The second was after. Defence counsel argues that from the outset Officer Worsdale breached Mr. Hatami’s s. 10(b) rights by asking him about the gun without first advising him of his rights to counsel. The Crown argues that the officer was not obliged to advise Mr. Hatami of his rights to counsel before asking about the gun at this stage, as he was not detained. I agree. At the point in time that the officer first asked about the gun, he was providing aid. While Mr. Hatami could not walk away because of his injuries, he was not detained, as that has been explained in R. v. Suberu, 2009 SCC 33 at paras. 21-28 and R. v. Grant, 2009 SCC 32 at para. 44.
13Moreover, the defence position that the officer was required to provide rights to counsel before asking any questions about the gun ignores the context. The officer was dealing with a chaotic, unfolding event where he had little information. He had seen Mr. Adan make a flinging motion when he first arrived. Mr. Adan was acting oddly. There was another passenger who was also on the scene. Officer Worsdale had to quickly determine who owned the gun to address officer and public safety concerns. Given the urgency, Officer Worsdale needed immediate information to properly assess the risks. In situations such as this, to insist that before asking any questions aimed at safety concerns an officer has to read rights to counsel would unduly impede the officer’s ability to address an urgent situation. As in Suberu, at para. 32, it would be “absurd” to suggest that the officer had to give rights to counsel before “sorting the situation out.”
14Different considerations, however, apply to the second utterance. Having already heard Mr. Hatami’s admission that the gun belonged to him, the officer knew that he would be charged at some point. Mr. Hatami was now detained. Had he been physically able to leave the scene, the officer would have stopped him. As a result, Mr. Hatami had a right to be informed of his right to counsel without delay. Without delay means that the police must advise an individual of their right to retain and instruct counsel immediately upon arrest or detention, subject to legitimate concerns for officer or public safety. (Suberu, paras. 41-42; R. v. McGuffie, 2016 ONCA 365 at para. 42)
15In many cases, where an officer is giving aid to a seriously injured person in a chaotic situation, the failure to advise of the right to counsel immediately would be justified because of such concerns. In this case, however, Officer Worsdale turned on his microphone for the express purpose of recording an incriminating statement. He asked again whose gun it was, knowing that the answer would incriminate Mr. Hatami in a serious offence. Concerns for public or police safety did not stop the officer from seeking to capture on tape a statement that would implicate Mr. Hatami. Once he had the information from Mr. Hatami that the gun was his, there were no safety issues that would require him to ask the question again. Given that, he should have advised Mr. Hatami of his rights to counsel (and cautioned him) before he took this investigative step.
16The Crown concedes that in these circumstances, the officer breached Mr. Hatami’s s. 10(b) rights, but argues that the breach is minor, a factor to take into consideration in s. 24(2). I will address my findings with respect to the seriousness of the breach in more detail when I turn to my analysis of s. 24(2).
Issue Two: Has the Crown established beyond a reasonable doubt that that the utterances made by Mr. Hatami at the roadside were voluntary?
17In R. v. Oickle, 2000 SCC 38, 2000 2 SCR 3, the Supreme Court noted that in order for statements made to a person in authority to be admissible, the Crown must establish beyond a reasonable doubt in light of all of the circumstances that the will of the defendant has not been overborne. The court should look to whether there have been any threats or inducements, oppressive circumstances or a lack of an operating mind. In addition, there must not be any police trickery that unfairly denies the defendant his or her right to silence. Oickle makes it clear that the proper approach to considering the admissibility of statements is to consider the above as factors that alone or in combination can result in a statement being ruled involuntary.
18Oickle also establishes that causation is a central consideration in the analysis. Speaking specifically about inducements, the court said at para. 57 that an effort by the police to convince a suspect to make an admission becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.
19Mr. Hatami testified that when Officer Worsdale first asked whose gun it was, he responded that he did not know. Mr. Hatami said that the officer asked him a second time, and he again said he did not know. The officer asked a third time, and threatened that if he did not tell him whose gun it was that they would all go to jail. The Crown argues that this evidence should be rejected. I agree. Mr. Hatami’s evidence suffered from a number of reliability and credibility issues. In general, I do not accept his evidence except where it is corroborated by other evidence or is in accord with common sense.i In this case, there is nothing on the audio tape to support his contention. While the audio was not on at the outset, it was turned on just after Mr. Hatami made his first utterance. At no time after the audio was turned on did Mr. Hatami ask any questions about his friends, or whether they would be charged or go to jail now that Mr. Hatami had admitted ownership of the gun. The lack of questions about whether his friends would be charged belie his assertion that the officer threatened that everyone would go to jail if Mr. Hatami did not provide information.
20Moreover, in my view, it would make little sense for Officer Worsdale, who had just arrived on scene and was administering aid to Mr. Hatami, to start making such threats. He had scarce information about what had occurred, but clearly Mr. Hatami had been the victim of a serious crime. In this context, it seems highly unlikely that he would use a coercive tactic to elicit information from a victim. Moreover, the video and audio of the officer’s actions at the side of the road support that he did not threaten Mr. Hatami as alleged. Officer Worsdale came across as a caring, empathetic officer who was doing his best to assist Mr. Hatami. The allegation that he threatened that everyone would be going to jail is inconsistent with the manner in which he can be seen and heard to be dealing with Mr. Hatami at the scene.
21Thus, I reject Mr. Hatami’s account. That said, on the basis of the evidence which I do accept, I find that that the Crown has failed to establish that Mr. Hatami’s utterances were voluntary. Mr. Hatami was in a vulnerable state, having just been shot. The audio and the evidence of the officers on scene clearly establish that Mr. Hatami was in pain and fearful about his physical condition. In response to Officer Worsdale’s question about the gun, Mr. Hatami’s first response was to ask if he would get in trouble. It was only after the officer said that “he was not worried about that now” that Mr. Hatami admitted ownership of the gun.
22The comment of the officer can be seen as a promise that Mr. Hatami would not be charged for any information he provided. The immediate response of Mr. Hatami after the officer said he was “not worried about that right now”, suggests that the comment overbore Mr. Hatami’s initial reluctance to say anything and thus elicited the response. This is supported by Officer Worsdale’s evidence that he was surprised when Mr. Hatami admitted that it was his gun, as that does not usually happen.
23The Crown argues that Officer Worsdale’s comments would not have been seen as an offer of immunity, because the officer said he was not worried “about that now”. The Crown submits that this communicated that Officer Worsdale would, in fact, be concerned about charges later. Thus, he was not promising that no charges would be laid. I agree that the use of the word “now” might militate against a finding that the comment was a promise of immunity. That said, in my view it is, at the very least, possible that Officer Worsdale’s comment caused Mr. Hatami to make his incriminating utterances. The officer’s comment that he was “not worried about that now”, in response to Mr. Hatami’s question as to whether he would “get in trouble”, may well have acted as an improper inducement that overbore his will. I thus have a reasonable doubt as to the voluntariness of the statement. Mr. Hatami’s utterances at the side of the road are not admissible.
The Utterances in the Ambulance
24Officer Liska questioned Mr. Hatami about the gun as they rode in the ambulance to the hospital. The Crown is not seeking to rely on the statement substantively.1 Whether or not the utterances were made voluntarily, however, may be relevant to the assessment of later statements made by Mr. Hatami. Moreover, whether his rights pursuant to s. 10(b) were violated in the ambulance may be relevant to the s. 24(2) analysis. As a result, I will consider both voluntariness and s. 10(b) in relation to the utterances in the ambulance.
Issue One: Were the utterances made by Mr. Hatami in the ambulance voluntary?
25The utterances in the ambulance were made shortly after the utterances at the roadside which I have ruled were involuntary. As explained by Watt J.A., in R. v. Manchulenko, 2013 ONCA 543 at para. 67, the derived confessions rule can lead to the exclusion of statements which, despite not being involuntary when considered alone, are sufficiently connected to an earlier involuntary confession to be rendered involuntary and hence inadmissible.
26The leading case on the derived confessions rule is R. v. I. (L.R.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504. There, at para. 31, Sopinka J. noted that a confession rendered after one ruled involuntary, will in turn be found involuntary in two circumstances. First, if the tainting features which disqualified the first confession continued to be present. Second, if the fact that the first statement was made was a substantial factor contributing to the making of the second statement. Relevant factors in the assessment may include the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence after the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances.
27Here, the utterances in the ambulance were close in time to those at the roadside. Officer Worsdale never properly cautioned Mr. Hatami. Officer Liska did not provide either the primary or secondary caution. The absence of a warning does not necessarily render a statement involuntary, but it is factor to be considered. (Boudreau v. The King, 1949 CanLII 26 (SCC), [1949] S.C.R. 262, per Kerwin J. at p. 267; R. v. Hebert, 1990 CanLII 118 (SCC), 57 C.C.C. (3d) 1 at p. 29) Moreover, once a prior statement has been held to be involuntary, the onus is on the Crown to show that the effect of the threat or inducement has dissipated. (R. v. Mclean, [1989] O.J. No. 1416 (Ont.C.A.); R. v. Caputo, 1997 CanLII 1636 (ON CA), [1997] O.J. No. 857 (Ont.C.A.) at para. 37). The lack of caution in Mr. Hatami’s case makes it difficult for the Crown to establish that the tainting feature that led to the first utterances was no longer operative when Mr. Hatami was questioned by Officer Liska in the ambulance.
28Moreover, the evidence is unclear as to what questions were asked by Officer Liska which led to the utterances. But it is apparent that Mr. Hatami referred to his utterances at the roadside, as he said to Officer Liska that he had “told the other officer” that it was his gun. In my view, the utterances in the ambulance were linked in a substantial way to the earlier involuntary utterances at the side of the road.
29Looking at the evidence in its totality, I find that the derived confessions rule applies and the utterances in the ambulance are inadmissible.
Issue Two: Did Officer Liska violate Mr. Hatami’s s. 10(b) rights to counsel by asking him questions about the gun while in the ambulance?
30Officer Liska asked Mr. Hatami a number of questions about the gun. She did not provide him his rights to counsel. She testified that she did not consider him detained, rather, he was a victim. While she may not have subjectively believed him to be detained, in my view he was objectively detained. He had admitted to a serious crime. If he had the ability to leave, and had tried to do so, no officer would have let him.
31Officer Liska said that she asked questions about the gun, so that the police could confirm that the gun recovered was the same gun that Mr. Hatami had admitted to owning. Officer Liska, however knew very little about the facts. While the situation was serious, there was no suggestion that there were any urgent officer or public safety concerns that would justify non-compliance with s. 10(b). Before asking questions which could elicit an incriminating response, Officer Liska should have advised Mr. Hatami of his rights to counsel. She failed to do and violated his s. 10(b) rights.
At the Hospital
32Mr. Hatami arrived at the hospital at 11:55 a.m. It was not until 1:34 p.m. that Officer Liska advised him of his rights to counsel. While there was a delay, this was because Mr. Hatami received emergency medical treatment upon arrival. No officer sought to elicit information from Mr. Hatami during this time. In light of that, the defence advances no complaint about the delay in advising of the rights to counsel after arriving at the hospital. The defence, however, raises a number of issues about what transpired thereafter.
33While at the hospital, Mr. Hatami was interviewed three times by Officers Hewitt and Moorcroft. First, at 3:17 p.m. on May 29. Second, at 9:27 p.m. on May 29. Finally, at 5:22 p.m. on May 31. In each of the three interviews Mr. Hatami admitted that it was his gun.
34The Crown seeks only to adduce the statement made on May 31. The defence argues that the derived confessions rule applies to this statement and that it was involuntary. Defence counsel further argues that there were a host of Charter violations at the hospital that are relevant in assessing whether this final statement should be excluded pursuant to s. 24(2). In particular, Mr. Hatami’s right to counsel was not facilitated until 7:28 p.m. Defence counsel argues that this was an unreasonable delay and violated s. 10(b). Moreover, when Officers Hewitt and Moorcroft interviewed Mr. Hatami at 3:17 p.m. on May 29, he had not yet been given the opportunity to consult with counsel. Finally, when Mr. Hatami did have a chance to speak with duty counsel, he was not given the opportunity for a private consultation. Instead, he spoke with duty counsel while he was in a room with other patients. Defence counsel argues that this lack of privacy also violated Mr. Hatami’s s. 10(b) right.ii
35I will address each issue in turn.
Issue One: Has the Crown established that the May 31 statement was voluntary?
36As noted above, a confession made after one ruled involuntary will itself be ruled involuntary if the tainting features which disqualified the first are still present, or if the fact that the first statement was made was a substantial factor contributing to the making of the second. Here, I have found that both the utterances at the side of the road, and the utterances in the ambulance, were involuntary. Defence counsel argues that the May 31 statement is so linked to the earlier ones that it must be found to be involuntary as well.
37The Crown counters that the derived confessions rule does not apply to the May 31 statement. I agree. Over two days had gone by since the earlier, involuntary utterances. Mr. Hatami had been properly cautioned by Officer Liska at 1:34 p.m. on May 29. He was cautioned again by Officers Hewitt and Moorcroft before they took the statement. In my view, these factors militate against applying the derived confessions rule to the May 31 statement.
38Defence counsel further argues that even without considering the earlier involuntary statements, the Crown has failed to prove the May 31 statement to be voluntary. He advances a number of different submissions in support of this position. First, he argues that the officers tricked Mr. Hatami into speaking with them. He was not expecting them to re-interview him and they had him brought into an interview room without any warning.
39The Crown counters that Mr. Hatami asked for the officers to come to speak to him on May 31. The difficulty for the Crown is that there is no admissible evidence that Mr. Hatami did so. According to Officer Jeremy Hayes, he contacted the investigating officers to send them to interview Mr. Hatami. He did so, he said, because Officer Dan McGarry, who was guarding Mr. Hatami, had called to say that Mr. Hatami had requested their attendance. But when Officer McGarry testified, he had no memory of this. Thus, the only evidence that Mr. Hatami asked the officers to speak to him is hearsay.
40But even without evidence that Mr. Hatami asked the officers to come to speak with him, I do not accept that they spoke to him without warning. I accept the evidence of both Officer Hewitt and Officer Moorcroft that they spoke briefly with Mr. Hatami about taking the statement before they went to the interview room. Further, I am not satisfied that the officers tricked Mr. Hatami into speaking with them. Mr. Hatami claimed that Officer Craig Drummond (who had taken him for walks earlier) said he was taking him for another walk. Instead, however, without any warning, Officer Drummond took him to a room where Officers Hewitt and Moorcroft were waiting. I reject Mr. Hatami’s evidence on this point. His evidence is not corroborated in any way. Further, the allegation was never put to Officer Drummond. Importantly, Mr. Hatami said nothing on the audio recording about being tricked or taken by surprise.
41Defence counsel also points to Mr. Hatami’s claim that the officers spoke to him for 10 to 12 minutes before they turned the audio recording on. Mr. Hatami testified that during this meeting the officers told him what they wanted him to say. Counsel argues that I should have a reasonable doubt that the statement was voluntary because the officers failed to tape this portion of their meeting with Mr. Hatami. I am unable to accept this argument, as I do not accept Mr. Hatami’s evidence that the officers spoke to him for a length of time without recording the discussion. Mr. Hatami was unable to describe with any specificity what was said during the time he says the audio was off. He could only recall about two sentences, which would not account for the time frame he alleges the officers spoke to him without recording the conversation. If he had really spoken to the police for that length of time, it seems he would be able to explain what took place in more detail.
42Finally, defence counsel submits that I should have a reasonable doubt as to whether Mr. Hatami had an operating mind at the time of the interview. Mr. Hatami testified that during the May 31 interview he was heavily medicated, as if he was having an “out of body experience” - he was mentally “not there”. The audio of the interview, however, undercuts his claim. Mr. Hatami speaks clearly and coherently to the police officers. He does not simply agree to what they are saying, but takes issue with certain points. At no time does he complain about feeling overly medicated or being unable to understand the officers.
43In my view, there is nothing on the audio recording of the interview which suggests that the statement was involuntary. There were no threats or inducements. Mr. Hatami had an operating mind. There were no oppressive circumstances or police trickery. The Crown has established beyond a reasonable doubt that the statement was voluntary.
Issue Two: Did the delay in facilitating the right to counsel at the hospital breach Mr. Hatami’s s. 10(b) rights?
44The duty to facilitate the right to counsel arises immediately upon the detainee’s request to speak to counsel. That means that the police are under a constitutional obligation to facilitate the right to counsel at the first reasonably available opportunity. The burden is on the Crown to show that any delay in facilitating the right was reasonable in the circumstances. (R. v. Taylor, 2014 SCC 50 at para. 24)
45Mr. Hatami told Officer Liska at 1:34 p.m. that he wished to speak with duty counsel. Mr. Hatami was not given that opportunity until 7:28 p.m., almost six hours later. There were a number of factors that led to the delay in providing the phone. While I accept that some delay was reasonable, in my view, overall the delay was not justified.
46After Mr. Hatami said he wished to consult counsel, Officer Liska did not take immediate steps to get a phone from the hospital staff. She said she waited, as she knew that Mr. Hatami was going to undergo a medical procedure. He was prepped for “minor” surgery at 2:30. p.m.2 While Officer Liska’s memory was somewhat vague, she said that she “probably” asked for the phone only after the procedure ended at 2:46 p.m. In my view it would have been preferable for Officer Liska to start taking steps to secure the phone immediately after Mr. Hatami asserted his right to counsel to ensure that he could speak with a lawyer as soon as he had finished his medical treatment. That said, in light of the information Officer Liska had about the medical treatment Mr. Hatami was going to receive, her decision to delay does not seem unreasonable.
47The delay in getting Mr. Hatami a phone to consult with counsel after that point, however, is less understandable. The evidence regarding the phone provided to Mr. Adan is instructive. Officers Hewitt and Moorcroft had a brief meeting with Mr. Hatami at 2:17 p.m., where they introduced themselves. Since he was seeing doctors, they went to talk with Mr. Adan, who was also receiving emergency treatment at the hospital. Mr. Adan said he wanted to speak to a lawyer, and the officers arranged for a portable “landline” phone to be brought to him. The phone was on a gurney, and was a stand-alone unit; it did not require a phone jack to work. Mr. Adan spoke to his brother and also to his lawyer, Mr. Stasny.
48While Mr. Adan was still on the phone, Officers Hewitt and Moorcroft went back to interview Mr. Hatami, which they did between 3:17 p.m. and about 3:44 p.m. Mr. Hatami was in a room on the same floor as Mr. Adan, about a one minute walk away. If the officers had simply waited until Mr. Adan had finished his call, the phone could have easily been brought to Mr. Hatami. At that stage, Mr. Hatami was in a room by himself and a private call with counsel could have been easily facilitated.
49When questioned about this, both officers said that they did not arrange to have the phone brought to Mr. Hatami, as he was getting medical treatment. The timing of events, however, undercuts this claim. At 3:17 p.m., the officers conducted an interview with Mr. Hatami. The interview ended around the time they left the hospital at 3:44 p.m. If Mr. Hatami had been getting treatment, then they would not have been able to interview him. Rather than interview Mr. Hatami, they should have ensured that the phone being used by Mr. Adan made its way to Mr. Hatami. The delay in getting the phone to Mr. Hatami at this stage was unreasonable.
50Further, Officer Liska testified that after asking the hospital staff for a phone for Mr. Hatami, she did not follow up on her request, because she did not want to harass the staff. But Officer Liska was tasked with facilitating an important constitutional right. By the time she left at 4:00 p.m., Mr. Hatami still did not have a phone. Officer Liska should have taken more pro-active steps to get a phone for Mr. Hatami. Had she done so, she might have learned about the phone being used by Mr. Adan while she was still guarding Mr. Hatami, and made arrangements for it to go to him.
51Instead, it was only when Officer Liska was leaving that she saw that there was a phone on a cart near Mr. Adan. She testified that she told the officers dealing with Mr. Adan that Mr. Hatami was still waiting to use the phone. Unfortunately, however, she failed to tell Officers Mathew Grant and Gavin Lawrence (who took over her detail of guarding Mr. Hatami) that there was a phone nearby that could be used by Mr. Hatami. The failure to advise the incoming officers of this fact had a significant effect. Officer Grant advanced two reasons for his failure to get Mr. Hatami a phone while he was still in the private room downstairs. First, he said that Mr. Hatami did not get a phone earlier because he was getting medical treatment. Officer Grant, however, provided no details of what the treatment was, or when it occurred. According to Officer Lawrence, however, Mr. Hatami got stitches at 4:30 p.m. He has no other medical treatment noted. The fact that Mr. Hatami got stitches at 4:30 does not explain why Mr. Hatami could not get a phone at any time between 4:00 and 5:21 p.m.
52The other reason advanced by Officer Grant for why he did not get a phone for Mr. Hatami was that he believed that no phone would work in the room in which Mr. Hatami was being kept. He said he asked a nurse and that was what he was told. But it is clear that this is wrong. There was a phone. It was only a minute away, with Mr. Adan. It was a stand-alone unit that did not require a phone jack to work. But Officer Liska failed to tell Officer Grant about the phone. The officers who were with Mr. Adan failed to bring the phone over to Mr. Hatami as requested. The lack of communication between the officers, and their unexplained failure to bring the phone to Mr. Hatami, led to an unreasonable delay in implementing the right to counsel.
53At 5:21 p.m., Mr. Hatami was moved from the private room he had been in in the emergency wing, to a room shared with other patients. He was not given access to a phone until 7:18 p.m. when he spoke to his mother. He then spoke with duty counsel at 7:28 p.m. It is unclear why there was this delay once Mr. Hatami had been moved. Mr. Hatami was no longer in the emergency area and would not be getting ongoing medical treatment.
54Looking at the time between 1:34 p.m. (when Mr. Hatami asserted his right to counsel) and 7:28 p.m. (when the call to counsel was facilitated) there are certain delays that seem inevitable and reasonable given the medical context. That said, there were other delays that cannot be explained by the medical issues or the logistical issues created by the hospital setting. Given these facts, the Crown has failed to establish that the delay in providing Mr. Hatami the phone so that he could contact counsel was reasonable. As result, I find that Mr. Hatami’s s. 10(b) right was breached by this delay.
Issue Three: Did Officers Hewitt and Moorcroft breach Mr. Hatami’s s. 10(b) right by interviewing him before he had a chance to speak with counsel?
55The law is clear that upon the assertion of the right to counsel, police have an obligation to refrain from taking further investigative steps to elicit evidence from the defendant. (R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236; R. v. Taylor, 2014 SCC 50 at para. 26)
56Despite this, Officers Hewitt and Moorcroft went to speak to Mr. Hatami before he had a chance to exercise his right to counsel. They began their interview at 3:17 p.m., ending it just before they left the hospital at 3:44 p.m. Officer Hewitt said that they wanted to obtain information to assist in the shooting investigation. That said, Officer Hewitt characterized the situation as pressing, not urgent. He did not explain why they could not have waited to speak to Mr. Hatami until after he had a chance to speak to counsel.
57Further, they did not clearly tell Mr. Hatami that they did not want to speak about the gun offence, as he had not yet spoken to counsel. Even if the situation was urgent, and the officers needed to obtain information relevant to the shooting investigation, the officers could, and should, have clearly advised Mr. Hatami that they only wanted to speak to him about the shooting, not the gun offence. They failed to do so. While Officer Hewitt said that he was treating Mr. Hatami as a victim, being a victim of a crime does not mean that you lose your constitutional rights.
58Officer Hewitt denied that they asked any questions about the gun. Rather, he said they asked a general question and Mr. Hatami provided information. Along with telling the officers about the shooting, Mr. Hatami also told them that he bought the gun for his protection as he worked nights, he bought it for $2,500 from a friend, it was a 38 caliber with six bullets in it and had a bandana tied to it. Officer Moorcroft recalls the interview differently. He testified that either he or Officer Hewitt asked Mr. Hatami why he had the gun, how much he paid for it and why it had the bandana on it. He said they asked questions, but were not planning on doing anything with the information received about the gun. It was not necessary, he explained, as Mr. Hatami had already confessed to Officer Worsdale that it was his gun.
59I find Officer Moorcroft’s testimony that they asked questions about the gun to be more credible than Officer Hewitt’s evidence that they did not. The information provided by Mr. Hatami matches up with the questions that Officer Moorcroft said they asked. In addition, it seems implausible that Mr. Hatami would have provided so much detail about the gun if the police had only asked questions about the shooting.
60Mr. Hatami had asserted his right to counsel. The police had an obligation to cease questioning until he had an opportunity to exercise that right. Instead, they questioned him about the gun in a clear breach of s. 10(b). Moreover, even if I accepted Officer Hewitt’s evidence that they did not ask any specific questions about the gun, Mr. Hatami’s right was still violated. Officer Hewitt agreed that he knew that there was the potential that Mr. Hatami would provide incriminating evidence when they went to speak to him at 3:17 p.m. Given that, they should have waited to speak to Mr. Hatami until after he had a chance to consult with counsel. The officers violated Mr. Hatami’s s. 10(b) right by questioning him before he had a chance to speak with counsel.
Issue Four: Did the police violate Mr. Hatami’s right to counsel by failing to provide him with an opportunity to consult with counsel in private?
61It is clear that the right to counsel encompasses the right to consult in private. (R. v. Lepage [1986] N.S.J. No 371 (N.S.C.A.) at paras. 16-17; R. v. McKane, 1987 CanLII 6794 (ON CA), [1987] O.J. No 557 (Ont.C.A.) at para. 9; R. v. Kennedy, 1995 CanLII 9863 (NL CA), [1995] N.J. No. 340 (Nfld.C.A) at paras. 41; 46-47; R. v. Cairns, [2004] O.J. No. 201 (Ont.C.A.) at para. 9; R. v. Bhullar, 2013 ONCJ 326 at para. 9; R. v. Gautam, 2017 ONCJ 577 at para. 27) As noted by the Ontario Court of Appeal in R. v. Playford, 1987 CanLII 125 (ON CA), [1987] O.J. No. 1107 (Ont.C.A.) at para. 31, “[i]t would defy common sense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and in particular by police officers.” (emphasis added)
62That said, as Abella J. noted in Taylor, at para. 31, there may be circumstances where it will not be possible to facilitate private access to a lawyer for a detained person receiving emergency medical treatment. On the other hand, the fact that an individual is in the hospital does not create a blanket exception to the right to consult counsel in private. As Abella J. explained at para. 34:
An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible.
63Mr. Hatami said that Officer Grant remained in the room when he spoke with counsel. Officer Grant denied that. I do not accept Mr. Hatami’s evidence on this point. As said previously, in general I do not accept his evidence, given the many issues with the reliability and credibility of his testimony. That said, Mr. Hatami also testified that when he spoke to counsel, he was in a room with other patients. I accept this evidence, as it is corroborated by the testimony of a number of other officers.
64Mr. Hatami also testified that he did not feel free to discuss his situation with duty counsel, as others were in the room with him. I accept his evidence on this point. As a matter of common sense and human experience, an individual may not feel free to have full and frank conversations with counsel if others are in a position to hear what is being said. As noted by the court in Lepage, at para. 17, “[e]ven to obtain the minimal advice by means of a telephone, a person detained or arrested must be free to discuss the circumstances of his detention with counsel”.
65Officer Grant took no steps to see if it would be possible for Mr. Hatami to speak to counsel in a private room. What is clear from the rest of the evidence, however, is that it was possible to get a private room at the hospital. We know this because Officers Hewitt and Moorcroft were able to get a private room on May 31 when the wanted to interview Mr. Hatami. Indeed, they secured a private room to talk within a few minutes of asking.
66In cross-examination, Officer Grant said he did not ask for a private room, as Mr. Hatami was hooked up to machines and it was not easy to move the bed. I have two difficulties with this evidence. First, Officer Grant did not say anything in examination-in-chief about not being able to secure a private room because of medical equipment. Indeed, in chief he referred a number of times to Mr. Hatami having a private call with counsel. It seems from his evidence that he thought the call would be private if there were no police officers present. It was only when it was pointed out to him in cross-examination that a call in front of other patients is not truly private that he raised the issue of whether it would be medically feasible to accommodate the call in a different room.
67Second, Officer Grant failed to ask any hospital staff if it would be possible for Mr. Hatami to speak to counsel in a private room. Thus, there is no evidence that medical or logistical barriers stood between Mr. Hatami and private access to counsel. As in Taylor, at para. 35, the result of the officer’s failure to even turn his mind to the obligation to provide this access means that there is virtually no evidence about whether a private phone call would have been possible, and therefore no basis for assessing the reasonableness of the failure to facilitate access.
68I find that Mr. Hatami’s s. 10(b) right was violated by the failure of the police to take any steps to facilitate private access to counsel.
69Thus, when Officers Hewitt and Moorcroft interviewed Mr. Hatami on May 31, he had not been afforded the opportunity to properly exercise his s. 10(b) right. It is true that Mr. Hatami raised no complaint about the lack of private consultation. As noted in R. v. Willier, 2010 SCC 37 at para. 42, “unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview.”
70That said, the lack of complaint must be assessed against the fact that while Officer Liska told Mr. Hatami that he had the right to speak with counsel, she did not tell him that he had the right to speak with counsel privately. Mr. Hatami had never been in trouble with the law before. Given that he was never told he had the right to private consultation, it is not surprising that he did not complain when he did not get that right.
71The failure to ensure that Mr. Hatami could consult with counsel in private was particularly problematic in the circumstances of his case. By the time he finally spoke with duty counsel, Mr. Hatami had already talked to the police about the gun three times. The utterances at the side of the road and in the ambulance were involuntary. With the exception of the first utterance at the side of the road, the statements were elicited in violation of s. 10(b) of the Charter.
72Mr. Hatami was acutely vulnerable and in need of legal advice. He was highly susceptible to the belief that “[o]nce the first statement was given, the rationale for further restraint in self-incrimination was gone.” (R. v. I (L.R.), at para. 41) Indeed, this seemed to be the view of Officer Moorcroft, who sought to minimize the fact that he and Officer Hewitt elicited incriminating evidence from Mr. Hatami before he had his right to counsel, on the basis that he had already confessed to Officer Worsdale. That is, the jig was already up.
73Given this, it was imperative that Mr. Hatami be able to have a full, frank and candid discussion with duty counsel. He had to be able to freely discuss the fact that he had already confessed to owning the gun a number of times. I accept that Mr. Hatami was hindered in having such conversations, as he was never given an opportunity to speak with counsel in private.
Should the evidence be excluded pursuant to s. 24(2) of the Charter?
74Section 24(2) provides that evidence that was obtained in a manner that infringed or denied any Charter rights shall be excluded if its admission would bring the administration of justice into disrepute. The framework for the application of s. 24(2) was set out by the Supreme Court in R. v. Grant, 2009 SCC 32. The court must consider three lines of inquiry: i) the seriousness of the Charter-infringing state conduct; ii) the impact on the Charter-protected interests of the defendant; and iii) society’s interest in an adjudication on the merits.
(i) Seriousness of the Charter-Infringing State Conduct
75The first inquiry involves measuring the seriousness of the violation. The more severe or deliberate the state conduct, the greater the need for the court to disassociate itself from the conduct by excluding the evidence. In the present case, Mr. Hatami’s s. 10(b) rights were violated in a number of ways, some more serious than others.
76Mr. Hatami’s s. 10(b) rights were initially breached by Officer Worsdale. This breach led Mr. Hatami to make an incriminating utterance that is linked contextually and casually with the other statements that followed, including the one on May 31. In my view, however, the breach of Mr. Hatami’s rights by Officer Worsdale falls at the less serious end of the spectrum. When Mr. Hatami admitted that the gun was his, Officer Worsdale acted on instinct by turning on his microphone and asking again whose gun it was. That is unfortunate, but also understandable in the context. Officer Worsdale did not deliberately violate the right to counsel; rather, he followed his instinct to preserve evidence. I cannot find that the officer acted in bad faith. Indeed, his actions by the side of the road, and his testimony before me lead me to the conclusion that while the officer made a mistake, he did so in good faith.
77Similarly, I cannot find that Officer Liska was acting in bad faith in the ambulance when she asked Mr. Hatami questions about the gun without reading him his rights to counsel. While I have found that there were no ongoing public or police safety issues that would justify her questions, she was trying to obtain information for such reasons. She was not seeking to elicit incriminating information to use against Mr. Hatami. She came across as a caring and compassionate officer, who was worried about both Mr. Hatami and the public. As with Officer Worsdale, I find that she was acting in good faith in the ambulance.
78Officer Liska’s failure to follow up with the hospital staff after her first request for a phone is more problematic. She was constitutionally obliged to facilitate access to counsel, and her failure to follow up on her initial request for a phone led to unreasonable delay. That said, I find that her inaction arose because she was overly cautious due to concerns about imposing on busy medical staff. She was not purposely trying to deprive Mr. Hatami of his rights to counsel. While she should have been more active in trying to secure a phone, her failure to do so falls at the less serious end of the spectrum.
79Officer Liska’s failure to advise Officers Grant and Lawrence about the phone being used by Mr. Adan is more serious. Given the importance of the right to counsel, and the amount of time that had already gone by, Officer Liska should have told the officers who took over guarding Mr. Hatami from her, about the phone. Her neglect displays an unacceptably casual approach to the right to counsel.
80I further find that Officer Grant’s failure to ensure that Mr. Hatami had private access to counsel to be serious. As noted, hospitals are not Charter-free zones. The police were easily able to obtain a private room on May 31 when they wanted to conduct an interview with Mr. Hatami. Yet Officer Grant took no steps at all to see if a private room could be used for Mr. Hatami to speak to counsel. The result was that when Officers Hewitt and Moorcroft interviewed Mr. Hatami the final time, he had yet to have a private consultation with counsel.
81Moreover, the actions of Officers Hewitt and Moorcroft in interviewing Mr. Hatami after he had asserted his right to counsel, but before he had a chance to speak to counsel, fall at the serious end of the spectrum. The officers acted in blatant disregard of an important constitutional right. While the Crown does not seek to tender this interview, it is contextually and causally related to the May 31 statement at issue. As Officer Hewitt explained, in the final interview, he knew at what point the conversation would turn to the gun because of his previous discussions with Mr. Hatami.
82Looking at all the breaches in their entirety, I find that overall the police conduct falls at the serious end of the spectrum. This factor points towards exclusion.
(ii) The Impact on the Charter-Protected Interests of the Defendant
83In my view, the impact on Mr. Hatami’s rights was significant. His right to silence and right against self-incrimination were undermined. He gave incriminating statements a number of times to the police before they advised him of his right to counsel. He gave further incriminating statements when the police interviewed him after he had asserted his right to counsel, but before he was given a chance to speak to duty counsel. When he finally spoke with duty counsel, it was not in private. Thus, when he was interviewed for the final time on May 31 and again made incriminating utterances, the police had yet to provide an appropriate consultation with counsel. This factor also points towards exclusion.
(iii) Society’s Interest in an Adjudication on the Merits
84The Crown cannot establish its case without Mr. Hatami’s statements. There is a strong societal interest in having the case determined on its merits. This factor favours the admission of the evidence.
(iv) Balancing the Factors
85Mr. Hatami is facing serious charges. The seriousness of the charges, however, do not speak for or against exclusion of the evidence and instead can “cut both ways”. When an individual is facing significant consequences, it becomes even more important that courts are not seen to be condoning improper police conduct. It is essential that the seriousness of the charges does not overwhelm the other factors relevant to the s. 24(2) analysis. (R. v. McGuffie, supra at para. 73; R. v. Patterson, 2017 SCC 15, at para. 55)
86The evidence at issue is the May 31 statement of Mr. Hatami. As noted recently by the Court of Appeal in R. v. Fountain, 2017 ONCA 596 at para. 61, statements obtained in violation of the right to counsel will generally be excluded. (See also Grant, at paras. 95-96)
87Moreover, here the first two branches of the Grant inquiry favour exclusion. As explained by Doherty J. in McGuffie at para. 63, “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.”
88In my view, the admission of the evidence would bring the administration of justice into disrepute. As a result, the evidence is excluded pursuant to s. 24(2).
Conclusion
89Mr. Hatami’s utterances at the side of the road were involuntary and are inadmissible. Moreover, Mr. Hatami’s s. 10(b) Charter rights were violated in a number of respects. In light of the nature of the breaches, I have determined that the evidence of the May 31 statement must be excluded pursuant to s. 24(2) of the Charter as its admission would bring the administration of justice into disrepute.
90Without the evidence, the Crown cannot establish Mr. Hatami’s guilt beyond a reasonable doubt. As a result, I find him not guilty.
Justice Heather McArthur
Released: November 24, 2017
CITATION: R. v. Hatami, 2017 ONSC 7016
COURT FILE NO.: 16-3/346
DATE: 20171124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADRIAN HATAMI
Applicant/Defendant
REASONS FOR JUDGMENT
McArthur J.
Released: November 24, 2017
I also had concerns regarding Mr. Hatami’s reliability. For example, he had no recollection of the police interviewing him at 3:17 p.m. on May 29. Indeed, he denied that such an interview took place. Yet on the officers’ own evidence, that interview represented a clear breach of s. 10(b). If Mr. Hatami were simply tailoring his evidence to support his Charter argument, there would be no reason for him to say that the meeting did not take place. This is a clear example of the reliability issues in his evidence. By way of another example, he said that when he first met Officers Hewitt and Moorcroft, the latter was introduced as “Gallagher”. There is no discernable reason why the officers would use the wrong name to identify Moorcroft. This highlights the reliability issues with Mr. Hatami’s evidence. Mr. Hatami said that there were times when he felt “loopy” and “out of it” because he was medicated. The medical records filed corroborate that he was taking hydromorphone. At first he was given 2 to 4 mg every 2 hours, which was then changed to 6 mg 3 times a day.
There were also a number of other issues with Mr. Hatami’s evidence. His recollection was often contradicted by other evidence and he was internally inconsistent on a number of points. But watching the evidence unfold, I was unable to determine if these difficulties in his evidence were related to credibility or reliability issues. Either way, in light of the issues I have with Mr. Hatami’s evidence, in general, I only accept his evidence when it is corroborated by other evidence or in accord with common sense.
The defence called Mr. Hatami’s father, Hamid Hatami to testify, on this point. He said that he met with Mr. Metzler on the morning of May 31. Mr. Metzler called the hospital and put the phone on speaker. Mr. Hamid Hatami testified that Mr. Metzler said he was the defendant’s lawyer and wanted to talk to him. The officer, however, said he had spoken with his supervisor, and that the supervisor said he “did not care” if Mr. Metzler was Mr. Hatami’s lawyer, he was not allowed to speak with him. Mr. Metzler did not testify.
Officer Barnes testified that he spoke with Mr. Metzler on the phone about Mr. Hatami, but at first was unsure if he was a lawyer. As a result, he called his supervisor, Detective Harvey, to confirm his status as counsel. After speaking with Officer Harvey, Officer Barnes said that he spoke with Mr. Metzler and said that Officer Harvey had already explained everything that Mr. Metzler needed to know. Officer Barnes said that Mr. Metzler never asked to speak to Mr. Hatami, and he did not know why he was calling. He said he would not have refused Mr. Hatami access to speak with his lawyer, but the conversation ended without Mr. Metzler asking if he could speak to, or visit with, Mr. Hatami.
Officer Harvey testified that on Sunday he received a call from Mr. Metzler who told him that he was Mr. Hatami’s lawyer. He said that Mr. Metzler did not ask to speak to Mr. Hatami and had called to provide information about the next remand date for Mr. Hatami.
I found the evidence of all three witnesses to be somewhat odd. It seemed unlikely that a defence counsel would put his call to the police on speaker phone. Moreover, Mr. Hamid Hatami recalls only one phone call, yet two officers said that they spoke to Mr. Metzler. Further, if the police had refused counsel access to his client, one would expect a complaint, yet there is no suggestion that one was made. On the other hand, the evidence of Officer Barnes that Mr. Metzler called about Mr. Hatami, yet did not want to speak to his client also seems unlikely. Detective Harvey’s evidence that Mr. Metzler called him to give the next remand date also seemed unusual.
Overall, I found the evidence on this issue to be confusing and unclear. Mr. Metzler did not testify to clarify what occurred. Given the state of the evidence, I am unable to find on a balance of probabilities that Mr. Metzler was prevented from speaking to Mr. Hatami.
Footnotes
- I had concerns with Mr. Hatami’s credibility. For example, he testified that Officer Grant took the phone from him when he was speaking to duty counsel and cut his call short. If true, that would be a serious breach of his s. 10(b) rights. Yet the allegation was never put to Officer Grant. Similarly, Mr. Hatami said that when he met with Officers Hewitt and Moorcroft on the night of Friday May 29, he told them he wanted to speak to another lawyer. That was never put to either officer in cross-examination. Moreover, Mr. Hatami failed to make that claim in his evidence in chief. Mr. Hatami also said that Officer Liska did not explain duty counsel to him. Again, that was never put to Officer Liska. In any event, Officer Liska provided a detailed account of explaining duty counsel to Mr. Hatami and there was nothing to undermine her evidence on this point. I do not accept Mr. Hatami’s evidence in this area. In particular, I do not accept that Mr. Hatami did not understand that he was speaking with a lawyer at 7:28 p.m. on May 29 because no one had explained the concept of duty counsel. Moreover, while it is clear that Mr. Hatami suffered serious injuries, I find that at times he was exaggerating the extent of his medical distress in an attempt to make his Charter arguments seem stronger.
- The Crown had intended to ask for a ruling on voluntariness so that he could use the utterances in cross-examination of Mr. Hatami. As such, both sides asked questions relevant to this issue. Mr. Hatami, however, chose not to testify on the trial proper.
- Defence counsel raised one further issue. He alleged that a lawyer retained by the Hatami family, Mr. Patrick Metzler, attempted to speak with Mr. Hatami at the hospital, but was told by an officer that he would not be permitted to speak to him. In general, once a defendant has been provided with an opportunity to speak with counsel, the police are not under any obligation to facilitate further contact with counsel unless there has been a change in circumstances that would require a second consultation for the defendant to get the advice needed to address the new situation. (R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 at para. 47) Here, counsel argues that since Mr. Hatami never had a chance to speak to duty counsel in private, that he should have been given the opportunity to speak with Mr. Metzler and the refusal of the police to allow this violated Mr. Hatami’s s. 10(b) rights.
- Mr. Hatami suffered three gunshot wounds. He was struck in the right bicep, right forearm and right posterior shoulder. The procedure involved having a bullet removed from Mr. Hatami’s neck. The medical records show that a bullet entered Mr. Hatami’s right shoulder and traveled to his anterior neck. Because it was superficial, the bullet was removed by a doctor using only a local anesthetic. A CTA/neck CT did not show any major arterial or significant injury.